Summary
dismissing after plaintiff failed to attend two noticed depositions
Summary of this case from Ramos v. Park Hotels & Resorts, Inc.Opinion
Civil Action 01-2361
May 7, 2002
CIVIL ACTION
Before the Court is a Motion to Dismiss pursuant to Rule 37(d) of the Federal Rules of Civil Procedure (Document No. 12), filed on behalf of the defendant, American River Transportation Company ("ARTCO"). The Court took this matter under submission on April 24, 2002. The Court, having considered the arguments of counsel, the evidence submitted, the record, the law, applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
The plaintiff, Connie Hubble, filed suit in the Eastern District of Louisiana on August 1, 2001. In her complaint, Hubble alleges that ARTCO is responsible under the Jones Act for injuries allegedly received when Hubble lifted a box of potatoes in the galley of the M/V ANDREW MACMILLAN. Throughout August and September, the parties exchanged Pretrial Disclosures and propounded a series of discovery requests. On November 30, 2001, the parties participated in a Preliminary Conference wherein a discovery cut-off date of April 24, 2002 was established and the trial was set for June 3, 2002.
On December 19, 2001, the plaintiff informed her attorney in New Orleans that she was discharged with additional instructions to immediately forward plaintiffs file to new counsel in St. Lotus. Missouri On January 29. 2002, ARTCO noticed the plaintiffs deposition in New Orleans for February 26. 2002 via a certified letter mailed to the plaintiffs legal address in Porum, Oklahoma. On February 4, 2002, the plaintiff signed the receipt certifying delivery of the Notice of Deposition in Oklahoma.
On March 4, 2002, after the plaintiff failed to appear or provide any reason for her inability to appear for her properly noticed deposition, ARTCO re-noticed plaintiff's deposition for March 20, 2002, again forwarded via a certified letter to her address in Oklahoma. Plaintiff again signed the receipt certifying delivery in Oklahoma on March 8, 2002. Again, plaintiff failed to both attend her properly noticed deposition, and failed to notify opposing counsel that she would not be in attenance. On April 4. 2002. ARTCO filed the instant Motion to Dismiss pursuant to Rule 37(d) of the Federal Rules of Civil Procedure.
II. LAW AND ANALYSIS
A. The Law on FRCP 37(d).
According to Rule 37(d) of the Federal Rules of Civil Procedure, a court may sanction a party if that party fails to attend his/her own deposition when served with proper notice. F.R.C.P. 37(d)(1). Dismissal is the most severe sanction and a court should use it cautiously. Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967). Dismissal as a sanction under Rule 37(d) maybe imposed only when a plaintiff has repeatedly refused to comply as well as demonstrating a bad faith refusal to comply. Griffin v. Aluminum Co. of America, 564 F.2d 1171, 1172 (5th Cir. 1977).
The plaintiffs only explanation for her failure to attend the two depositions that were properly noticed is that she was not represented by counsel at the time the depositions were noticed. However as evidenced by her letter to her previous counsel of record in this matter dated December 19, 2001, it is apparent that the plaintiff had retained new counsel as of December of 2001. In addition to her failure to actually attend the deposition, the plaintiff failed to notify the defendant that she would not be able to attend the properly noticed depositions.
See Exhibit "A" attached to ARTCO's Motion to Dismiss.
The plaintiff's failed to attend two properly noticed depositions. As evidenced by the signed receipt certifying delivery, the plaintiff was well aware of the dates of the deposition and her failure to appear was of her own volition. The Court finds that the plaintiffs failure to attend her deposition was done in bad faith, and therefore grants the Motion to Dismiss pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, dismissing the case without prejudice.
See Exhibits "C" and "F" attached to ARTCO's Motion to Dismiss.
Rule 37(d) of the Federal Rules of Civil Procedure also provides:
In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The Court does not find Hubble's failure to attend both of her properly noticed depositions was substantially justified. The record clearly evidences that the plaintiff received adequate notice, yet she neither attended the deposition, nor did she notify opposing counsel that she would not attend. Because of her unjustified failure to attend her depositions, the award of reasonable expenses to opposing counsel is appropriate.
III. CONCLUSION
For the foregoing reasons, the Motion to Dismiss pursuant to Rule 37(d) of the Federal Rules of Civil Procedure (Document No. 12) filed on behalf of the defendant is GRANTED.
Accordingly,
IT IS ORDERED that the Motion to Dismiss filed on behalf of the defendant, American River Transportation Company (Document No. 12), be, and the same is hereby, GRANTED. IT IS FURTHER ORDERED that the plaintiffs claims against American River Transportation Company be, and the same is hereby, DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the plaintiff, Connie Hubble, pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, be required to pay to counsel for American River Transportation Company the amount of reasonable expenses incurred due to her failure to attend the two noticed depositions.
IT IS FURTHER ORDERED that counsel for American River Transportation Company provide to this Court within thirty (30) days an itemized description of the costs they incurred due to the failure of the plaintiff to attend both of her properly noticed depositions so that the proper amount of reasonable expenses can be determined,
IT IS FURTHER ORDERED that the Motion to Dismiss filed on behalf of the plaintiff, Connie Hubble (Document 19), be, and the same is hereby rendered MOOT.